Affirmed and Memorandum Opinion filed May 30, 2024

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00237

- CR

DAVID LEE HART , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No

. 17 53579

MEMORANDUM OPINION
A jury found appellant guilty of aggravated sexual assault of a child

— his
thirteen

- year
- old stepsister. The trial court sentenced him to thirty

- five years ’ confinement. In a single issue, appellant contends that the trial cour t erred by overruling his hearsay objection to the following portion of the complainant ’ s admitted medical records, which relays the complainant ’ s mother ’ s statement to a

nurse : “ But my other daughter said that she heard heavy breathing coming from
whe re [ ap pellant and the complainant ] were. ” Appellant contends that the2 statement was hearsay

- withi n
- hearsay and not admissible under the exception for medical diagnosis. Assuming without deciding that appellant preserved error, we hold that any error in t he a dm ission of th ese statements was harmless.

I. Legal Principles
Generally, the erroneous admission of hearsay is non

- constitutional error.
See Rosales v. State , 548 S.W.3d 796, 808 (Tex. App.

— Houston [14th Dist.] 2018, pet. ref ’ d). Non

- constitutional err or r eg arding the admission of evidence require s reversal only if the error affects the defendant ’ s substantial rights. Gonzalez v.
S t ate , 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); see also Tex. R. App.
P. 44

. 2 (b); Tex. R. Evid. 103(a). Error affects su bst anti al rights if the error had a
subs tantial and injurious effect or influence in determining the jury ’ s verdict.
Gonzalez , 544 S.W.3d at 373. If we have a fair assurance from examining the record as a whole that the error did not influence the jury, or had bu t a slight effect,

w e will not overturn the conviction. Id. In making this determination, we
consider : (1) the character of the error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the

ve rdic t; (3) the existence and degree of additional evidence indicating guilt ; and (4)
whether the S t ate empha sized the error. Id. Often the erroneous admission of evidence is harmless if similar evidence is admitted without objection. See
Estrada v. S t at e , 3 13 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); see also Leday v. State , 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ( “ It is well
established that t he improper admission of evidence does not constitute reversible error if the same facts are shown by oth er e vi dence which is not challenged. ” (quotation omitted).3 II. Analysis Although appellant objected to portions of the medical records, he did not object when the nurse who had examined the complainant testified and repeated
the statement about the mother ’ s da ughter hearing heavy breathin g . Becaus e the

nurse ’ s testimony provided substantially the same evidence as the report , any error the trial court might have made by admitting the statement in the report was harmless. See Estrada , 983 S.W.3d at 302 n.29; Le day , 9 83 S.W .2d at 717; see

a lso Fratta rola v. State , No. 14

- 18

- 00525

- CR, 2019 WL 3956170, at *1 (Tex. App.

— Houston [14th Dist.] Aug. 22, 2019, pet. ref ’ d) (mem. op., not designated for publication) ( harmless error wh en the healt h care provider testifie d a bout t he
statements in the re port ) ; Her nandez v. S t ate , No. 05

- 17

- 0056 0

- CR, 2018 WL
23160 26, at *13 (Tex. App.

— Dallas May 22, 2018, pet. ref ’ d) (mem. op., not designated for publication) ( same ) ; Lamerand v. S t ate , 540 S.W.3d 252, 257 (Tex. App.

— Houston [1s t Dist .] 2018, pet. ref ’ d) (s ame). 1

Mo r eover, although the complainant denied sexual conduct with appellant
and did not testify at trial , other evidence of appellant ’ s guilt was substantial :

• Appellant confessed to having sex with the complainant in a

re cor ded in terview with police . Th e recordi ng was admitted as an exhibit and played fo r the jury. He said , “ My pe nis was penetrating her vagina. ” He said they had sex four or five times before being caught. He knew it was wrong be cause she was a minor.

• D NA analys is showed “ very stro ng support ” f or the proposition that appellant contributed to sperm fraction s found on swabs from the complainant ’ s vagina and her shorts . It was at least sevent y quadrillion times more likely for the s perm to have originated fro m appe llant compared to an unknown indi vidual.

1 We cite unp ublished opini on s not for preced ent ial va lue, but for ill ustrative and comparati ve purposes. See Roberson v. State , 420 S.W.3d 832, 837 (Tex. Crim. App. 2013).4 • The jury heard evidence of appellant ’ s extraneous sexual offenses committed against his younger female cousins

. One of those cousins testifi ed that appellant touched her private par ts under her clot hes whe n s he was about seve n years o ld and appell ant was about e leven. Regarding the second cous in, a ppellant ’ s uncle testified that he walked in on appellant, then age fourteen, sexually assaultin g the uncle ’ s five

- year
- old daughter.

Fin ally, we note that the S tat e did not mention the “ hea vy breathing ” statement during closing arguments.

III. Conclusion
Considering the entire record, we have a fair assurance that the alleged error did not influence the jury or had but a slight effect . Appellant ’ s sol e issue is

overr ule d, and the trial court ’ s judgment is affirmed.

/s/ K en Wi se J ustice

Pane l con sists of Just ices Wise , Z imme rer, and Poissant

. Do Not Publish

— Tex

. R. App. P. 47 .2( b )